The
state Supreme Court yesterday agreed to decide when a premises owner may be
liable for injuries sustained by the employee of an independent contractor due
to a dangerous condition on the owner’s property.

The
high court took up, on a 5-2 vote, the ruling of the First District Court of
Appeal in Kinsman v. Unocal Corporation
(2003) 110 Cal.App.4th 826. In her July opinion for Div. Three, Justice Joann
C. Parrilli said the case presented “an unsettled question under Privette v. Superior Court (1993) 5
Cal.4th 689…and its progeny.”

The
appellate court justice concluded that, based on “the policies expressed in Privette and the Supreme Court’s
application of those policies in recent cases,…a premises owner has no
liability to an independent contractor’s employee for a dangerous condition a
contractor has created on the property unless
the dangerous condition was within the property owner’s control and the owner
exercised this control in a manner that affirmatively contributed to the
employee’s injury.”

The
First District reversed a $3 million jury award against Unocal Corporation won
by Ray Kinsman, who claimed he developed lung cancer after being exposed to
asbestos dust while building scaffolding during repair work at Unocal’s Wilmington
refinery. Kinsman worked for an independent contractor.

Parrilli
said the instructions given by San Francisco Superior Court Judge Paul H.
Alvarado on Kinsman’s premises liability theory of recovery did not include the
limitations required under a correct reading of Privette.

“[T]he
Supreme Court has adhered to the policies outlined in Privette that limit a hirer’s vicarious or
derivative liability to a contractor’s employee; however, the court has also
made it clear that these policies are not violated when a hirer is held liable
to such an employee based on the hirer’s own affirmative negligence,” Parrilli
wrote.

She
explained:

“Kinsman’s
theory of negligence consisted of evidence showing Unocal knew asbestos was
present in areas of the refinery where Kinsman worked, Unocal had access to
information such that it knew or should have known the asbestos in its refinery
was dangerous, and Unocal contracted for work that involved the release of
asbestos fibers into the air without warning Kinsman of the hazard or urging
him to wear a mask. Based on this evidence and the BAJI 8.01 instruction, the
jury held Unocal liable for negligent maintenance of its land. However, the
jury also found Unocal did not
retain control over the methods or manner in which Kinsman performed his work.
Given this finding, if the jury had been instructed about the limits on
Unocal’s liability described in this opinion, it would likely have concluded
Unocal had no liability to Kinsman whatsoever—because Unocal did not retain
control over the dangerous condition (i.e., airborne asbestos) present on its
land, or because the evidence did not show that Unocal affirmatively contributed
to Kinsman’s injury.”